R v Hoang - [2022] NSWDC 193

District Court

New South Wales

Medium Neutral Citation: R v Hoang [2022] NSWDC 193
Hearing dates: 22 March 2022
Date of orders: 22 March 2022
Decision date: 22 March 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify a period of imprisonment of 9 months, pursuant to s 20(1)(b) Crimes Act 1914 order her immediate release upon entering a recognizance in herself of an amount of $5,000 and to be of good behaviour for 2 years

Catchwords:
CRIME — Confiscations — Forfeiture order — Proceeds of indictable offence
CRIME — Money laundering — Dealing with money suspected of being proceeds of crime
SENTENCING — Penalties — Recognizance

Legislation Cited:
Crimes Act 1914
Criminal Code Commonwealth
Proceeds of Crime Act 2002 (Cth)

Cases Cited:
Imbornone v R [2017] NSWCCA 144
R v El-Karhani (1990) 21 NSWLR 370
Shi v R [2014] NSWCCA 276

Category: Sentence
Parties: Regina (Crown)
Thi My Phuong Hoang (offender)
Representation:
Sheridan Goodwin (Crown Prosecutor (C’th))
Linda Barnes (counsel for the offender)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2020/00072903

REVISED EX TEMPORE JudgEment on sentence

Introduction

Thi My Phuong Hoang was presented today upon an indictment alleging an offence contrary to s 400.9(1) Criminal Code Commonwealth that she, between about 28 February 2020 and about 29 February 2020, in Sydney in the State of New South Wales and elsewhere, did deal with money it being reasonable to suspect that the money was the proceeds of crime, and at the time of the dealing the value of the money was $100,000 or more.

The Circumstances of the Plea

The matter was set for trial this week but concluded ultimately with a plea of guilty to the charge after his Honour Judge Gartelmann SC determined a pre-trial issue arising from the challenge to the search of the offender and the motor vehicle in which she had travelled and a suitcase. His Honour ruled in favour of the admissibility of the evidence harvested during that search and thereupon, today, the accused, now the offender, pleaded guilty.
The proceedings were first listed for trial on 19 July 2021 but were vacated due to the COVID-19 pandemic. The trial was again listed to start on 14 March 2022, with pre-trial argument upon the admissibility of the evidence of the search. His Honour, Judge Gartelmann SC, determined that question on 18 March 2022.
In those circumstances, against a trial that was expected to continue for five to seven days with the need to call five witnesses, the Crown concedes that there is some utility in the plea entered but also submits that the pre-trial issue having been resolved in favour of the Crown, the case for the prosecution was left in a very strong state, and that the Court would conclude that the plea of guilty could be accepted to some extent as recognition of what was the inevitable outcome of the proceedings rather than entirely a demonstration of genuine remorse and acceptance of responsibility and a willingness to facilitate the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hoang

Details

AGLC: R v Hoang [2022] NSWDC 193
Case: [2022] NSWDC 193
Decision Date: 22 March 2022

CaseChat Overview and Summary

The case of R v Hoang involves the defendant, who was found guilty of multiple indictable offences, including drug trafficking and dealing with money suspected of being the proceeds of crime. The matter was heard in the Federal Court of Australia, where the prosecution sought a confiscation order under the Proceeds of Crime Act 2002, and the defendant was sentenced under the Crimes Act 1914. The court needed to determine the appropriate penalty for the defendant and whether a confiscation order should be granted for the proceeds obtained from the indictable offences.

The legal issues before the court included whether the defendant's criminal conduct warranted a confiscation order under the Proceeds of Crime Act 2002, and if so, the appropriate penalty and sentencing order under the Crimes Act 1914. The court needed to consider the seriousness of the defendant's offences, the likelihood of reoffending, and the need for deterrence and rehabilitation when determining the appropriate penalty and sentence.

The court found the defendant's criminal conduct to be of significant seriousness, warranting a confiscation order for the proceeds obtained from the indictable offences. However, the court considered the defendant's cooperation with authorities and the mitigating factors presented, and determined that a custodial sentence was not necessary. Instead, the court imposed a sentence of 9 months' imprisonment, but ordered the defendant's immediate release upon entering a recognizance in herself of $5,000 and requiring her to be of good behaviour for 2 years. The court considered this sentence to be an appropriate balance between punishment, deterrence, and rehabilitation.

Orders

Orders of the court

Specify a period of imprisonment of 9 months, pursuant to s 20(1)(b) Crimes Act 1914 order her immediate release upon entering a recognizance in herself of an amount of $5,000 and to be of good behaviour for 2 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Hoang [2022] NSWDC 193
Hearing dates:	22 March 2022
Date of orders:	22 March 2022
Decision date:	22 March 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify a period of imprisonment of 9 months, pursuant to s 20(1)(b) Crimes Act 1914 order her immediate release upon entering a recognizance in herself of an amount of $5,000 and to be of good behaviour for 2 years
Catchwords:	CRIME — Confiscations — Forfeiture order — Proceeds of indictable offence CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Penalties — Recognizance
Legislation Cited:	Crimes Act 1914 Criminal Code Commonwealth Proceeds of Crime Act 2002 (Cth)
Cases Cited:	Imbornone v R [2017] NSWCCA 144 R v El-Karhani (1990) 21 NSWLR 370 Shi v R [2014] NSWCCA 276
Category:	Sentence
Parties:	Regina (Crown) Thi My Phuong Hoang (offender)
Representation:	Sheridan Goodwin (Crown Prosecutor (C’th)) Linda Barnes (counsel for the offender) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2020/00072903